CAAF decides Clark

We granted review of the following issues: I. WHETHER IT WAS PLAIN ERROR FOR TRIAL COUNSEL TO ELICIT TESTIMONY THAT APPELLANT DID NOT RESPOND VERBALLY WHEN ARRESTED, AND THEN RELY ON THIS TESTIMONY DURING CLOSING ARGUMENT. II. WHETHER THE MILITARY JUDGE COMMITTED CONSTITUTIONAL ERROR THAT WAS NOT HARMLESS BEYOND A REASONABLE DOUBT WHEN HE OVERRULED DEFENSE COUNSEL’S OBJECTION DURING TRIAL COUNSEL’S IMPROPER REBUTTAL ARGUMENT.

For the reasons set forth below, we conclude that it was plain or obvious error for trial counsel to elicit testimony of Appellant’s failure to respond verbally to an accusation when apprehended and then rely on this testimony in his closing argument. We further conclude that the military judge committed constitutional error when he overruled Appellant’s objection during trial counsel’s improper rebuttal argument. However, we also conclude that these violations were harmless beyond a reasonable doubt[.]